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the American and English law as to public callings and the documents of the United States prior to the Hay-Pauncefote treaties, as has been shown, throw adequate and harmonious light upon the probable intent underlying those treaties. It now remains to inquire whether the treaties use language which overthrows the doctrines of public calling which any one acquainted with law and with diplomatic history would expect to find recognized in them.
THE HAY-PAUNCEFOTE TREATY OF 1901
So much for English and American law and the chain of documents prior to the Hay-Pauncefote treaties, to which treaties discussion frequently is restricted.
The terms of the unratified Hay-Pauncefote Treaty of 1900 and of the ratified Hay-Pauncefote Treaty of 1901, now in force, are practically identical in all passages even remotely pertinent to the question of tolls. The Hay-Pauncefote Treaty of 1901 expressly superseded the ClaytonBulwer Treaty and said:
The United States adopts, as the basis of the neutralization of such ship canal, the following rules, substantially as embodied in the Convention of Constantinople, signed the 28th of October, 1888, for the free navigation of the Suez Canal; that is to say: 1. The canal shall be free and open to the vessels of commerce and of war of all nations observing these Rules, on terms of entire equality, so that there shall be no discrimination against any such nation, or its citizens or subjects, in respect of the conditions or charges of traffic, or otherwise. Such conditions and charges of traffic shall be just and equitable. * * No change of territorial sovereignty or of the international relations of the country or countries traversed by the before-mentioned canal shall affect the general principle of neutralization or the obligation of the high contracting parties under the present treaty.
In the light of English and American law as to public callings, the words of this Hay-Pauncefote Treaty - "open to vessels of all nations" -"on terms of entire equality"-"no discrimination" -"charges just and equitable"-sound not unfamiliar. In truth those passages of the treaty are much like extracts from the opinions of English and American courts.
As has been pointed out, the United States, when it enters upon a world-wide public calling, such as the Hay-Pauncefote Treaty describes, might well be held, even without treaty stipulations, to have assumed the duties which are created by the law prevalent in the United States as to such a calling. As the courts have established for private individuals engaged in a public calling the rule of equality and justice, a government even though it be not under the duty of being more just than the private individual will have to give reasons of extraordinary strength for holding that when it itself conducts a public calling the rule may be inequality and injustice.
Again, whatever might be the duties of the United States in the absence of a treaty, the system of law used by both England and the United States furnishes the natural and necessary introduction and commentary for any treaty between these countries. This system has in it for public callings a doctrine requiring equality and reasonableness. Further, as to an Isthmian canal, this doctrine has been assumed and recognized and asserted by the United States from the beginning.
Finally, this doctrine is the very essence of the words in the HayPauncefote Treaty. If the treaty were silent as to the matter, the general law of England and the United States, and also the uniform recognition of the doctrine of equality in the past by the President, the Secretary of State, the Senate, and the House of Representatives, would make it difficult to insist that mere silence in the treaty would authorize the opposite policy of discrimination, but the treaty deals with the matter expressly and deals with it in harmony with what was to have been expected from the previous course of American and English law and of negotiation.
For the reasons given, it seems practically impossible not to come to the conclusion that the United States must give the services of the Panama Canal to all merchant vessels, and without discrimination, and on reasonable terms.
Hence, as the analogies of the law prevalent in the United States and England require uniformity, and as the current of official declaration from the beginning requires uniformity, and as the treaty in force re
quires uniformity, the exempting -as distinguished from the subsidizing of vessels engaged in the coasting trade appears to be impossible impossible because in this matter the United States, though free, like every sovereign, from the compulsion of ordinary courts, has the honor to be in a place of responsibility, managing "a trust for mankind."
THE NEW MOROCCAN PROTECTORATE
The signing of the Franco-Spanish treaty concerning the Moroccan question on November 27th marks the last stage in the process of establishing a French protectorate in the Shereefian Empire. For years the European Powers have watched the steady decline of the "little Realm of the West," the continued loss of power and prestige by its sovereigns both in local and in national affairs, and the gradual disruption of the entire state. Ever since 1880, France, the nearest and most interested African neighbor, has been a keen observer of every move of the Sultans; and she has rendered the harassed and incapable rulers every assistance, diplomatic and otherwise, that these sovereigns would accept and the Powers permit. The French have seen from the first that nothing short of an European protectorate would suffice to save the Sultans, to ensure the establishment of an efficient administration, to afford ample security for life and property, and to give peace and prosperity to the long-suffering and oppressed people.
With infinite patience and with a careful consideration for the interests of the European states and the citizens of Morocco, the French have waited for events to mature that would render the time propitious for the setting up of such a protectorate, and that should induce the Powers to authorize her to undertake the work. Meanwhile, with remarkable tact and extraordinary diplomatic skill, they succeeded in keeping in close touch with all that went on in Morocco and in strengthening their own position there quietly and steadily, until the interests and influence of France far exceeded those of any other European Power. She wove such a net-work of influences both within and without the kingdom, that it became impossible for any foreign state, or even the Maghzen itself, to ignore or displace her. Aided by numerous border difficulties, between Algiers and the Shereefian Kingdom, and internal revolts calling for interference, France soon became the recognized arbiter of Moroccan affairs. In 1904 Great Britain and Spain recognized the paramount
1 Printed in Supplement to this JOURNAL, p. 81.
interests of France in the country; 2 and at the Conference of Algeciras in 1906, called through the agency of Germany who questioned seriously the motives and good faith of France, the duty of organizing a police force for the realm and of assisting the Sultan to set up an efficient government was assigned to the French Republic and to Spain, while it was universally admitted that Morocco lay within the French "sphere of influence." The German Empire recognized this French supremacy on February 9, 1909, in an agreement with France, in which the latter promised to afford protection to German trade interests in Morocco; * and in 1907 Great Britain, Spain and France signed a treaty to preserve the status quo in Northern Africa.5
During the same period, the French have been busy building a great colonial empire in Northern and Central Africa. It embraces the greater part of the Sahara Desert and extends from Algeria and Tunis on the north to the Congo river on the south, and from St. Louis (at the mouth of the Senegal river) on the West Coast to Lake Chad and the borders of Darfur (in the Anglo-Egyptian Sudan) — a region nearly as vast in area as the United States. Morocco is the natural key-stone of this French fabric and the control of it is essential to the proper security and development of this colonial empire. The French Republic, already a leading Mediterranean Power, was dreaming of and creating a "Greater France" stretching away from the shores of the same sea. The Shereefian Kingdom naturally forms one of the chief gates of such an empire. In fertility of soil, mineral wealth, and commercial possibilities, it surpasses by far the other northern gateways - Algeria, Tunisia and Tripolitania. France controls, also, the best portion of the trade of the Western Sudan, the Sahara and Northwest Africa. To complete her mastery over this valuable commerce and to render her hold effective and progressive, she must have a guiding hand upon the great trade routes that cross the desert southward from Morocco, as well as on the
2 Declarations between France and Great Britain, April 8, 1904, and France and Spain October 3, 1904, SUPPLEMENT to this JOURNAL, Vol. 1, pp. 6 and 8.
3 General Act of the Conference of Algeciras, April 7, 1906, SUPPLEMENT, Vol. 1, p. 47.
4 Declaration between Germany and France, February 9, 1909, SUPPLEMENT, Vol. 6, p. 31.
'SUPPLEMENT, Vol. 1, p.